Citation Nr: 0724015
Decision Date: 08/03/07 Archive Date: 08/15/07
DOCKET NO. 05-14 774 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUES
1. Entitlement to an acquired psychiatric disorder
encompassing depression, anxiety neurosis, and somatoform
disorder, to include as due to an undiagnosed illness.
2. Entitlement to service connection for fatigue, to include
as due to an undiagnosed illness.
3. Entitlement to service connection for memory loss, to
include as due to an undiagnosed illness.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
A. C. Mackenzie, Counsel
INTRODUCTION
The veteran served on active duty from March 1988 to December
1994, with service in Southwest Asia.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 2003 rating decision
issued by the Department of Veterans Affairs (VA) Regional
Office (RO) in New Orleans, Louisiana.
The veteran appeared at a Travel Board hearing before the
undersigned Veterans Law Judge in January 2007.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required.
REMAND
During service, the veteran reported being "depressed"
during treatment in August 1991 and was assessed with
situational stressors with a depressed mood in November 1991,
at which time he also reported difficulty sleeping. Also, a
May 1992 Report of Medical History contains a notation of
depression due to personal problems in 1992, not considered
disabling. At that time, the veteran also reported hospital
treatment at the Portsmouth Naval Hospital but did not
specify the date or nature of such hospital treatment.
Subsequent to service, the veteran has been treated for
multiple psychiatric assessments, including depression,
anxiety, and rule out bipolar disorder. He has also
described having very low energy and being variably
forgetful, including at his January 2007 hearing, although he
has not been diagnosed with any specific disorders relating
to these complaints to date.
In a May 2003 letter, a private doctor ("J.F.") indicated
that the veteran suffered from post-traumatic stress and
chronic depression and had related "a great deal of his
problems back to his military service." In the preceding
paragraph, the doctor also stated that the veteran "has had
a great deal of difficulty since his military service."
Given the veteran's in-service treatment and the May 2003
letter, the Board finds that a VA examination addressing the
nature and etiology of his claimed psychiatric disorder is
"necessary" under 38 U.S.C.A. § 5103A(d) (West 2002 & Supp.
2006) in this case. Such an examination would also be
helpful to ascertain whether veteran has chronic disorders,
either representing known clinical diagnoses or other, non-
medical indicators that are capable of independent
verification, corresponding to his claimed fatigue and memory
loss. See 38 C.F.R. § 3.317(a)(4) (2006) (disabilities that
have existed for six months or more and disabilities that
exhibit intermittent episodes of improvement and worsening
over a six-month period will be considered "chronic").
This case also requires further evidentiary development in
terms of treatment records. First, in his hearing testimony
and in the letter from "J.F.," it was noted that the
veteran was admitted to Our Lady of the Lake Hospital in
Baton Rouge for mental health treatment in March 2003, but
records of such hospitalization are not included in the
claims file. The veteran also reported ongoing psychiatric
treatment at the Baton Rouge VA Medical Center (VAMC), but
the most recent treatment records from this facility
contained in the claims file date from March 2003. All
records corresponding to this reported treatment will need to
be obtained, pursuant to 38 C.F.R. § 3.159(c) (2006).
Moreover, during his hearing, the veteran reported being
"admitted" to the Portsmouth Naval Hospital for five days
of treatment during service. Correspondingly, in his March
2003 application, the veteran noted treatment for depression
in December 1991. (However, in a statement submitted during
the hearing, an acquaintance noted that the admission was in
February 1992, so the date is not entirely clear.) The
records currently contained in the claims file do not
indicate such hospitalization, and the veteran noted during
the hearing that "VA is still trying to figure out what
happened to my in-patient records." Accordingly, in view of
VA's heightened duty to assist in obtaining service records,
further steps should be taken on remand to ensure that such
records, if available, are added to the claims file. See
O'Hare v. Derwinski, 1 Vet. App. 365 (1991).
Accordingly, the case is REMANDED for the following action:
1. A letter should be sent to the
veteran explaining, in terms of
38 U.S.C.A. §§ 5103 and 5103A, the need
for additional evidence regarding his
claims. The letter must inform the
veteran about the information and
evidence that is necessary to
substantiate the claims, notify him of
the type of evidence that VA will seek to
provide, inform him of the type of
evidence that he is expected to provide,
and request that he provide any and all
relevant evidence currently in his
possession.
Specifically, the veteran should complete
a signed release form, with address
information, for hospitalization at Our
Lady of the Lake Hospital from March 2003
and should provide as much information as
possible (e.g., dates, names of doctors,
etc.) relating to his hospitalization at
Portsmouth Naval Hospital (apparently in
December 1991 or February 1992).
The veteran should also be notified that,
in cases where service connection is
granted, both a disability evaluation and
an effective date for that evaluation
will be granted. See Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).
2. Efforts should be made, through the
National Personnel Records Center and any
other plausible sources, to obtain
records corresponding to the veteran's
reported hospitalization at Portsmouth
Naval Hospital. Any additional
information received from the veteran
should be incorporated into these
efforts. If the search for such records
has negative results, documentation to
that effect should be included in the
claims file.
3. After securing any further necessary
release forms, with full address
information, all records of post-service
medical treatment which are not currently
associated with the veteran's claims file
should be requested. This request for
records should include treatment records
from the Baton Rouge VAMC dated since
March 2003 and, if a signed release form
is received, March 2003 records from Our
Lady of the Lake Hospital in Baton Rouge.
All records obtained pursuant to this
request must be included in the veteran's
claims file. If the search for such
records has negative results,
documentation to that effect should be
included in the claims file.
4. Then, the veteran should be afforded
a VA psychiatric examination, with an
appropriate mental health professional,
to determine the nature and etiology of
his claimed psychiatric, fatigue, and
memory loss disorders. The veteran's
claims file should be made available to
the examiner prior to the examination,
and the examiner is requested to review
the entire claims file in conjunction
with the examination. All tests and
studies deemed necessary by the examiner
should be performed.
Based on a review of the claims file and
the clinical findings of the examination,
the examiner is requested to provide a
diagnosis for each psychiatric disorder
shown upon examination. The examiner is
also requested to offer an opinion as to
whether it is at least as likely as not
(e.g., a 50 percent or greater
probability) that any current psychiatric
disorders, if present, are etiologically
related to the veteran's period of active
service.
The examiner should further note whether
the veteran currently has chronic
disorders corresponding to his claimed
fatigue and memory loss. If one or both
of these claimed disorders is not found
to be chronic in nature, the examiner
should so state. If, however, chronic
disorders are found, the examiner should
clarify whether such disorders are
attributable to a known clinical
diagnosis or, alternatively, to other,
non-medical indicators that are capable
of independent verification. For each
disorder attributed to a known clinical
diagnosis, the examiner should offer an
opinion as to whether it is at least as
likely as not that such disorder is
etiologically related to service.
A complete rationale should be given for
all opinions and conclusions expressed in
a typewritten report.
5. After completion of the above
development, the veteran's claims of
service connection for a psychiatric
disorder, fatigue, and memory loss (all
to include as due to an undiagnosed
illness) should be readjudicated.
If the determination of one or more
claims remains adverse to the veteran, he
and his representative should be
furnished with a Supplemental Statement
of the Case and given an opportunity to
respond.
Then, if indicated, this case should be returned to the Board
for the purpose of appellate disposition. The veteran has
the right to submit additional evidence and argument on this
matter. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This appeal must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
_________________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).